Public Bill Committee

[Mr. Jim Hood in the Chair]

(Except clauses 4, 11, 14 and 23, schedule 2, and any new clauses or new schedules relating to the termination of pregnancy by registered medical practitioners) - Clause 29

Offences under the 1990 Act

Amendment proposed [this day]: No. 173, in clause 29, page 33, line 20, at end insert—
‘(10B) It is a defence for a person (“the defendant”) charged with an offence of doing anything which, under section 3(1) or (1A), 4(1)(a) or 4A(2), cannot be done other than in pursuance of a licence, to prove that at the material time the defendant believed on reasonable grounds that what they did was not something to which the Act applied.’.—[Dr. Harris.]

Question again proposed, That the amendment be made.

Dawn Primarolo: Before we broke this morning I was responding to the amendment tabled by the hon. Member for Oxford, West and Abingdon about offences under the Human Fertilisation and Embryology Act 1990 and the Bill.
The 1990 Act makes it clear, as I said this morning, that it is an offence to store gametes, or to create, use or store an embryo, without a licence. The Bill introduces further offences relating to the creation without a licence of human admixed embryos, to come alongside the provisions that already exist. Those offences apply whether or not a person intended to create an embryo or human admixed embryo. In addition, it is expected that any person working in the field will know the rules under the Act when they apply, and when a licence is needed. The point that the hon. Gentleman has raised in relation to his amendment is about things that happen accidentally or without being planned, because of the nature of division before fertilisation. I shall answer his specific points.
It is my view, and that of the Government, that the clear set of rules that has been set out is appropriate. That is because we are dealing with one of the most sensitive areas, which Parliament has deemed it appropriate to regulate. I appreciate—the hon. Gentleman quoted from the letter that I circulated to the Committee—that there are occasions when an embryo could be created when that was not the intention. An example would be the accidental creation that the hon. Gentleman referred to this morning.
Amendment No. 173 would add a new defence to the 1990 Act for a person charged with an offence of creating, storing or using an embryo or admixed embryo, or storing gametes, without a licence. It would allow a defendant to raise the defence that at the material time they believed that what they were doing was not something to which the Act applied. As I said this morning, it is not acceptable in this complex area for the law to include a caveat to the effect that, despite the fact that incredibly knowledgeable people are engaged in highly complex activities, the test should be what was or was not in the mind of the researcher as to whether the creation was accidental.
I reiterate what I said this morning: there is no defence in the 1990 Act, and for a prosecution to be brought under that Act some safeguards or additional points need to be borne in mind. The Crown Prosecution Service must first obtain the consent of the Director of Public Prosecutions to proceed. That is not a common proceeding for criminal offences. It is reserved for offences in relation to which weighing the discretionary factors relevant to the decision whether to prosecute is likely to be a sensitive and difficult task. That makes it desirable for the CPS to obtain prior approval for a prosecution. If an offence were committed under the 1990 Act, the facts of the case would be looked at carefully and in detail before any proceedings were brought. That is necessary in such a complex area.
The hon. Member for Oxford, West and Abingdon quoted from the letter that I circulated to members of the Committee last week. Where there is any doubt about particular research projects, it would always be wise to talk to the HFEA about whether a licence was required. Indeed, there is currently a licensed project in connection with the research that we are discussing, which indicates that such projects are covered by the current definitions, so no further clarity is required.
I would, however, go further. The amendment says that, although the individual creates an embryo, they do not think that the Act applies to them. However, we have talked about the responsible person and the circumstances under which a licence would be granted or revoked, and the obligations are quite clear: the emphasis is on the researcher to understand and comply with the law.
Clearly, a researcher storing eggs will know that they could divide and thus create an embryo. Such people are at the forefront of their science and need to be aware not only that such things can happen, but of the consequences. Equally, they should know that the 1990 Act regulates their activities. It is therefore incredibly difficult to see how the defence in the amendment could work, given that it is based on what each researcher will know, instead of taking a clear line from the Bill, with the caveats that I have outlined regarding when a prosecution might proceed. This is not a new issue, and there is no indication that we should move away from the current arrangements.

Evan Harris: Even despite the caveats, it is clear from what the Minister is saying and from her letter—at least she is being clear—that anyone who cultures eggs in vitro will have to get a licence because the eggs might divide. I wanted to confirm that there is no escape from that and that things that did not previously require a licence will now require one for safety.
There is a further problem, because storing gametes is a licensable activity. Where, in terms of the development of the germ line cell, does the gamete start? If work is being done to generate IV-derived gametes, researchers will require a licence because an early-stage IV-derived gamete, even if it is just a germ cell at an early stage—a stem cell—will be covered. If the Minister can make that clear, there will at least be clarity.

Dawn Primarolo: No, I am not making that clear. The hon. Gentleman seeks to get me to make a general rule in a highly complex area of science. I have made myself quite clear. I am not taking responsibility for the scientific judgments and the understanding of those involved in such research. The clear indication that I am giving is that an embryo developing spontaneously from an egg is a rare occurrence—that is what I said in my letter, and it is true. Whether a researcher working on eggs would require a licence would depend on the specific project. For example, if a project used donated frozen eggs to analyse their components at a molecular level, the eggs would not necessarily be cultured, so there would be no chance of the parthenote developing. It is therefore not the case that every researcher working on eggs would need a licence from the HFEA. However, it is the researcher’s responsibility to be fully acquainted with the arrangements in the Act and to ensure that he or she complies with them.
This is a highly complex area. The steps to prosecution do not follow the normal criminal prosecution route—if I can put it that way—as there must be consent from the Director of Public Prosecutions, which is not common. The hon. Member for Oxford, West and Abingdon argues that there should be a general rule, licensed or not. The Government are trying to travel a narrow line by regulating where appropriate, but not allowing a caveat whereby some research might deem itself not to be covered by the Act and the offence. The responsibility goes squarely back to the researchers, the purpose of their research and the circumstances under which a licence should be acquired. If they have any doubts, they should refer them to the HFEA. That is the right place to put it.
To have a general rule means that we are in great danger of opening up areas of research that we intended to be regulated, but which are not regulated as we cannot get the legislation in line with all the objectives. This is a good, balanced and fair position to be in. It is not a new issue. It has worked over the period since the 1990 Act, and I see no reason why it should not work further. I do not suppose that I have convinced the hon. Member for Oxford, West and Abingdon with those comments, as he may hold very strong views on the matter, but I hope that at least he can clearly see the Government’s reasoning behind remaining at this position.

Evan Harris: I can see clearly what the Minister is saying. I said that this was a probing amendment and I was not wedded to it. I do not have strong views about the amendment, and a defence is not the ideal way to deal with this. However, it is necessary for the Committee to be certain about what is going to happen. I never spoke about “every researcher working with eggs”—which is what the Minister said—because obviously, if eggs are frozen, they are not in culture and they are not going to divide. I spoke about “every researcher who is dealing with eggs in culture”. Considering the situation, including this debate and what has been said in the Minister’s letter, it appears that those researchers will have to get a licence. I do not believe that that was the previous position—I know that it was not. There will be more licences, and regulation will extend. If regulation must extend as a by-product of a wider definition for other reasons then so be it, but it is important that researchers understand that.
Some researchers have a view on the matter. Those at Newcastle told me that it would be a disappointment to researchers that the spectre—as they put it—of the need to get a licence was going to hang over anyone working with eggs where the purpose did not involve fertilisation and so forth. At least now there is clarity about the Government’s position on that. The HFEA will have to work quickly before and after enactment, to ensure that everyone is clear.
One other area is not absolutely clear. The Minister has finished her contribution so I am not necessarily expecting a reply, but I would like her, and those reading the proceedings, to reflect on this. An egg is defined as a cell of the
“female germ line at any stage of maturity”.
If one has an embryonic stem cell that is pluripotent, at what point does that become an early stage bone marrow or germ line stem cell? It is pluripotent; in theory, from that embryonic stem cell, a cell from that line could be differentiated into a germ line cell—that is the point of them. There is therefore another question about at what stage people who are researching solely on stem cell lines—separate from the embryo work that another group may be doing—may themselves need a licence. The entity that they are working with may be heading with differentiation towards a germ line cell, and it may be considered to be captured. The storage of such cells is a licensable activity.
The point that I was making in tabling the amendment was that the breadth of regulation might well have increased, but it is not a question of scientists not knowing either the law or what they are doing. I was a little surprised by the Minister and do not think that she was serious when she said that I was arguing that senior scientists did not know what they were doing. The way science works means that it sometimes surprises people, and many discoveries are made through surprising and serendipitous findings, so no scientist is able to say in a protocol that something definitely will or will not happen. That is the nature and excitement of research. Clearly, any scientist working in this field has a responsibility to know and accept the law. When it is likely that an embryo, or something that could possibly be defined as an embryo, will be created, they will have to get a licence.
I do not want it to be left in anyone’s mind that scientists do not understand the law or are seeking to avoid it. It is just that there will now be extra regulation. If the Minister could reflect on the question about embryonic stem cells and when they become germ line cells at any stage of development, it might be useful to clarify that, because the HFEA will certainly have to.

Dawn Primarolo: Does the hon. Gentleman accept that discretionary factors are already in place that can be considered before a decision is taken on whether to prosecute, and that those discretionary factors are intended to deal precisely with some of the issues that he has identified? He has not made a case for why that is not enough; he simply reasserted that a licence is needed for everything. I clearly stated the conditions under which we would expect them to consider whether a licence was necessary.

Evan Harris: I apologise to the Minister for not dealing with that, although it was my intention to. They clearly have a choice: they can get a licence or rely on the fact that there would be discretion in prosecution. I am sure that that discretion would be used wisely, but many people do not like the idea that, although there can be an investigation, there could be a decision later in that process not to prosecute. We saw that during the debates in the House on religious hatred.

Dawn Primarolo: The hon. Gentleman started his contribution on the amendment wanting to cover scientists who inadvertently went outside the licences. It was not that they set about going outside the licence. He referred to that just a minute ago as the wonder of science, and I have told him that that is covered. Is he now saying that he wants them to have the absolute right to do certain research outside the licence? That is a slightly different proposition.

Evan Harris: I do not think that it is a different proposition. If it is likely that an embryo will be created, either as the intention of research or as a foreseeable consequence, clearly they should get a licence, and I think that that now applies to eggs in culture. An alternative, to avoid the need to get a licence, would be for there to be a clear defence to cover those circumstances in which, in full knowledge of the law, research artefacts that are not the purpose of the study, are not being described and will not last long, might emerge. That would make the whole question of investigation and prosecution much less likely. That would actually add an extra safeguard with regard to the decision to prosecute, because prosecutors will not prosecute if there is a defence that could be prevailed upon. So that would give researchers more confidence that they are not going outside their licence. It would be wrong for them to go outside their licence, and that is not what I am saying. It would be something that is not obviously licensable and could be done without a licence because it has nothing to do with embryos, but if something that could be described as an embryo in this wide definition is produced as a research artefact, they will be reassured and not scared off the idea of doing the research.
I do not think that it is satisfactory to rely on the DPP discretion, although I understand what the Minister says about that, just as it is not satisfactory to rely on an Attorney-General’s discretion, although it is better than nothing. Researchers will have to get a licence. I do not think that scientists will run the risk of not having one and having complaints made against them. However, that is for them to judge.
The Government have made their position clear on the question of eggs in culture. I repeat that there is a further issue about stem cells, but that probably needs greater reflection. I was not planning to put the matter to a vote, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 29 ordered to stand part of the Bill.

Clause 30

Regulations under the 1990 Act

Dawn Primarolo: I beg to move amendment No. 55, in clause 30, page 34, line 14, leave out ‘4A(5)(e) or (10)’ and insert ‘4A(4A) or (10)’.

Jimmy Hood: With this it will be convenient to discuss Government amendments Nos. 56 and 57.

Dawn Primarolo: I shall make some brief remarks.

Sitting suspended for a Division in the House.

On resuming—

Dawn Primarolo: I said that I would make some brief remarks, but I had not realised how brief they would be.
The definition of a human admixed embryo was amended during Committee of the whole House to include a catch-all provision. That captures all embryos containing both human and animal DNA in which the animal DNA does not predominate. The amendment was tabled following extensive discussions on definitions during the passage of the Bill through another place. The amendment also removed the power to extend the definitions of human admixed embryos through secondary legislation, as it was no longer required following the introduction of the new catch-all definition. Those amendments were accepted by the House.
In addition, an amendment was passed to insert a new regulation-making power to specify circumstances in which the keeping or use of human admixed embryos would be prohibited. The amendments tabled in this group are consequential to those tabled during the Committee of the whole House. They take out references to the regulation-making power to extend the list of human admixed embryos from clauses 30 and 31, which deal with the exercise of regulation-making powers under the Bill and the power to make consequential provisions in certain cases respectively.
The amendments also insert a reference to the new power into clause 30 to ensure that any regulations under the provision would be subject to debate in both Houses—the affirmative procedure. In that sense, they follow directly on from the decisions made in Committee of the whole House. The amendments extend no further principles in the Bill, but they tidy up the legislation and remove powers that are no longer required.

Mark Simmonds: I shall ask a couple of brief questions to make sure that I understand the changes that the Minister is proposing in the Government amendments. Do the consequential amendments mean that the exercise of every regulation-making power in the Bill has to be ratified by an affirmative resolution of Parliament, or are there different categories of regulation? It is not necessary to provide the information now—the Minister can give it in writing—but it would be helpful for the Committee to understand which regulation-making powers in the Bill have to be resolved by Parliament through affirmative powers and which do not.
I have a specific question about amendment No. 57. As the Minister has just explained, I understand that the removal of the term human admixed embryo—leaving out lines 34 and 35—removes the regulation-making power to change the definition of human admixed embryos, but how does that relate to the regulation-making power under section 4A(10) and amend section 4A(5) of the 1990 Act, which relate to human admixed embryos? I understood that that meant that the Government could change the definition of a human admixed embryo. Or does the regulation-making power in new section 45A(2)(b), inserted by clause 31, override sections 4A(10) and section 4A(5)?

Dawn Primarolo: A list of the categories are subject to affirmative resolution under the Bill and, rather than list them all into the record, I am happy to point them out in correspondence with the hon. Gentleman and other members of the Committee, for ease of reference in future debates. As for the changes that are being made, the decision taken on the Floor of the House to have a catch-all provision removed the necessity for regulations on definitions of admix, so we are removing it from the Bill. The Government have the power to amend the existing definitions, but they will no longer have the power to add new categories to those definitions. The amendments would remove the power from the Bill because it is not required any more. Changing the existing definitions, if that proved necessary, would be subject to affirmative procedure.
The cross-referencing is different because we made the changes in Committee of the whole House, and we are now tidying up the Bill. It is as though we have been in Committee all the time and are simply amending the Bill in two locations. I hope that I have made matters clear. As I said, the list is long and, rather than delay our proceedings by reading it into the record, I shall circulate it to all members of the Committee. It will not take a moment.

Amendment agreed to.

Evan Harris: I beg to move amendment No. 174, in clause 30, page 34, line 14, at end insert ‘section 20A; section 20B;’.
Last Thursday, we debated clause 21, which inserted new sections 20A and 20B in the 1990 Act. It resulted in agreement that those regulation-making powers should be subject to the affirmative procedure, and I asked whether they were. The Minister agreed that they should be, but it turned out that they were not. To assist the Committee, I have tabled an amendment that would make them subject to the affirmative procedure. I am not sure that it does the job, but it would be one less thing to cover when we discuss the Bill on Report. That is why I tabled the amendment.

Dawn Primarolo: The hon. Gentleman spoke to me during the break and said that, in the light of events, he would not speak to his amendment. However, I suggested that he move it formally, because he should be given acknowledgement for trying to catch up with the Government’s position. It is true that we debated the appeals procedure and whether or not the regulations would be subject to the affirmative or the negative procedure. I clearly said to the Committee that they should be subject to the affirmative procedure.
I thought that I made a joke, but the hon. Gentleman did not think so. However, I hope that he will allow me to make it once more. The hon. Gentleman is improving his skills as a parliamentary draftsman. He is nearly there—he is doing fantastically well. I have never been able to do as well in my time in Parliament. However, he has not quite made it on this occasion. I would have been willing to accept the amendment if it had been drafted correctly, but I will need to table another on Report to put matters right. However, I will be more than happy for the hon. Gentleman to add his name to it. The amendment will be tabled. The regulations are currently subject to the negative procedure, but we will take steps to make them subject to the affirmative procedure. I know that the hon. Gentleman will not press his amendment to a vote because he knows that it does not quite work, but it establishes the principle.

Evan Harris: I am grateful to the Minister for explaining that. It is back to the drawing board for me and my proposed new career. It is sometimes the habit of Opposition MPs to consult the Public Bill Office and then blame them. I cannot do that in this case. The amendment was my own poor work, and I look forward to seeing the Government’s proper amendment in due course. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 56, in clause 30, page 34, line 21, leave out ‘, 3(5)’.—[Dawn Primarolo.]

Clause 30, as amended, ordered to stand part of the Bill.

Clause 31

Power to make consequential provision

Amendment made: No. 57, in clause 31, page 34, leave out lines 34 and 35.—[Dawn Primarolo.]

Clause 31, as amended, ordered to stand part of the Bill.

Clause 32

Orders under the 1990 act

Question proposed, That the clause stand part of the Bill.

Mark Simmonds: I wonder whether the Minister can explain the difference between regulation, as set out in clause 30, consequential provision, as set out in clause 31, and orders, as set out in clause 32.

Dawn Primarolo: Will the hon. Gentleman repeat the question?

Mark Simmonds: Of course. Clause 32 refers to the Government’s ability to make orders, yet clause 30 refers to regulations, clause 31 to consequential provision, and clause 32 to orders. Is there a difference between regulation, consequential provision and orders? If there is, what is it? If they are the same, why has different terminology been used in three consecutive clauses?

Dawn Primarolo: Clause 30 deals with the regulations made under powers introduced by the Bill that are exercised by the authority—codes and so on. Clause 32 refers to the procedures of this House—whether matters are subject to the affirmative or the negative procedure. There is not a huge difference in practice, but there tends to be a consequential relationship between regulations and orders and the procedures under which they go through the House. One may ask why that is the case, and the answer is that the House has always done it in that way, and there is parliamentary precedent.

Question put and agreed to.

Clause 32 ordered to stand part of the Bill.

None

Meaning of “Mother”

Question proposed, That the clause stand part of the Bill.

Mark Simmonds: Clause 33 defines the meaning of “mother”. It states:
“The woman who is carrying...a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child.”
That definition dates back to the 1990 Act. I want to raise at this point, under a stand part debate on this clause, surrogacy arrangements affecting the mother and the definition of a mother. There are some complex and difficult issues that relate to the mother in surrogacy arrangements, which I do not think will be discussed in relation to any other part of the Bill.
Surrogacy arrangements are recognised in British law as long as no payment is made and only reasonable expenses are reimbursed. In the UK, surrogacy arrangements are not a binding agreement on either party; there is very little that the intended parents can do to secure their position prior to birth, even in gestational surrogacy—where the baby is genetically related to both intended parents and not to the surrogate.
Under the 1990 Act, if a child is being carried by a woman as a result of being artificially inseminated or has had an embryo introduced into her, she is to be treated as the mother for all purposes even if she is not genetically related to the child, and her husband will be treated as the father unless it is shown that he did not consent to the treatment. That parental consent and status can be lost only through a parental order or an adoption, and, I understand, that that is retained in clause 35, to which the hon. Member for Oxford, West and Abingdon has tabled an amendment. In the United Kingdom, parents who wish to use surrogate mothers then have to adopt the child or apply for a parental order, which involves a great deal of state intervention. Parents can be refused adoption orders even though the child is their genetic offspring. That is not the case if the surrogate is not married, as the genetic father can treat the child as his legitimate offspring and apply for a parental order much faster.
When these issues were debated in another place the Minister there promised that the Government would give those anomalies further consideration. Can the Minister state for the record today where those considerations have got to?
I shall put on the record two or three further complexities in this already very difficult area. There is an argument that a single commissioning genetic parent—the women who has had a child conceived from her egg and the single father—are discriminated against under the new provision. The law elsewhere in the world is not the same as it is in the UK, which adds complexity. For example, in the United States of America the legal parents of the offspring are the commissioning parents, not the parent who bore the child. Therefore, a child born by commissioning parents in the United States could be parentless and stateless. That may be considered under other pieces of legislation. The British Nationality (Proof of Paternity) Regulations 2006 may be illegal.
It will be helpful if the Minister could put the Government’s position on the record, especially in the light of the significant immigration into the UK from the European Union since the EU accession countries joined in 2004. Indeed, under EU law there is—correctly—more leeway for individual states to make their own appropriate legislation and regulations in this area of law, because it is so sensitive. There is therefore no consistency across the European Union.

Evan Harris: Surrogacy is a big issue. I am in some difficulty as I have amendments tabled to clauses 35 and 54, which touch on surrogacy issues, albeit not necessarily those mentioned by the hon. Gentleman. I am not suggesting that you should consider him out of order, Mr. Hood, but we have to be cautious because we are going to deal with some of these issues later.

Jimmy Hood: Order. The hon. Member for Boston and Skegness was not out of order.

Evan Harris: That was the point that I was making. I was not rising to make a point of order, Mr. Hood. If I had wanted to say that the hon. Gentleman was out of order, I would have said that, but I did not think that he was. However, I am concerned about how far we can go in the discussion and I am seeking your advice, Mr. Hood, as there are amendments to clause 35 that deal with UK citizens seeking surrogacy arrangements abroad.

Mark Simmonds: My understanding is that the amendments to clause 35 relate to the husband of the surrogate being considered the father. The points that I made under clause 33 related specifically to the meaning of “mother” as detailed in the provisions of clause 33.

Evan Harris: That is helpful. I wanted to raise another issue about surrogacy that I hope that the Minister will reflect on. It builds on the point made by the hon. Member for Boston and Skegness. The law in this country provides for surrogacy, but not for equality for surrogate parents in respect of maternity leave and employment protection. We cannot go too far down that path during debate on a health Bill, but as the Bill makes provision for surrogates, and as I know the Government are keen to ensure that there is no discrimination in legislation and that the welfare of the child is paramount, have the Government given any thought to whether it is appropriate to ensure maternity leave rights and employment protection for surrogate parents?
Part of the problem is that, as we have discussed, until a parental order is obtained, one is not the legal parent. By the time one is entitled to take some of the leave available, it is rather after the fact, as one wants to take such leave as early as possible. As I am attempting to stay in order, what I am asking is whether the Government are sure that nothing more can be done through conversations with other Departments, particularly the Department for Business, Enterprise and Regulatory Reform, to ensure a system that supports children and allows the creation of new families with children who are loved and wanted. The mothers and fathers involved in such arrangements—they are few—should have the opportunity to benefit from the arrangements available for other parents, arrangements that the Government introduced. I certainly support those arrangements and I think that there is full support for them across the country and the House.
I had better leave my remarks there. I was just probing that particular matter.

Dawn Primarolo: Mr. Hood, I am sure that you will stop me if I move beyond the remit of the clause. Clause 33 deals with the meaning of “mother”, replacing section 27 of the Human Fertilisation and Embryology Act 1990. It provides that a woman who carries a child as a result of assisted conception, wherever and however it took place, is the mother of the child. It also provides that if the child is then adopted, the woman who carried the child will no longer be the mother.
The hon. Gentlemen have touched on the specific considerations around surrogacy, and we will do so again at various points in the next few clauses. The hon. Member for Boston and Skegness asked me about our considerations—what we reflected on and what our conclusions were. I had intended during debate on amendments Nos. 171 and 172 to say what our view is and why we have taken it with regard to who is considered to be the father of the child and situations where the couple is married. It may be more appropriate to respond to his point then, when I will be happy to pick up any further points.
Surrogacy is an option of last resort for couples who cannot have a child by other means. The Bill extends the categories of couples who can apply for a parental order. The new provisions also make changes in terms of assisting organisations, but there is no international agreement governing or setting minimum standards for surrogacy arrangements. In the United Kingdom, the law applies to anyone who is resident, whether or not they are British citizens and whether or not their residency here is permanent.
Complicated arrangements are necessary, especially when surrogacy arrangements have been made outside the UK. Immigration law covers that. In exceptional circumstances, that goes to the heart of recognising the woman who carries the child as the mother and, if she is married, her legal husband as the father, unless he did not give consent, on the basis that a mother in surrogacy could decide not to give up the child. How immigration and employment law, the birth certificate, parental responsibilities and adoption rights interact is incredibly complex, but we attempt to cover such interaction through various clauses in the Bill.
Perhaps with a little latitude I could respond to the question that the hon. Member for Oxford, West and Abingdon asked about the rationales for maternity and paternity leave and what the Department for Business, Enterprise and Regulatory Reform could do. Maternity leave and pay was introduced primarily to protect the health and safety of the mother following the birth of the child and to help women to take time off in the weeks around birth. It is clearly predicated on such events—women are required by law to take a period of maternity leave after the birth of the child.
Rights to adoption leave and pay enable the adoptive parent to take leave from work. The idea that we would duplicate and give different parents access to the same leave, payments and rights when transferring legal rights is complicated. It is not wholly appropriate to discuss it under the Bill, and I feel that I would be straying if I did so. I merely wish to indicate to members of the Committee that, as we discuss these clauses, but not now, certain things will need to be said about the legal recognition of surrogacy, its interaction with international law, and the rights of the mother who carried the child.
The Government do not consider that there is unlawful discrimination against single people in such situations, which was mentioned, because being single has not been recognised as a protected status for the purpose of the European convention on human rights. I shall say more about that when we consider other amendments to clauses that we have not yet discussed. However, the measure is not about the quality of parenting or the ability of a single parent to be an excellent parent, but the complex interaction of the courts’ decisions on surrogacy and the current law in this country.
I have been careful to indicate sensitivity to the Committee, without going beyond the scope of the clause. I feel that the hon. Gentlemen will want to comment when we discuss subsequent clauses and amendments, because their principal points will come up in more detail. I hope that that is in order and helpful to the Committee.

Jimmy Hood: The Committee managed its way through that stand part debate with a little flexibility, and still managed to keep in order. That allowed hon. Members to make one or two important points.

Question put and agreed to.

Clause 33 ordered to stand part of the Bill.

Clause 34 ordered to stand part of the Bill.

Clause 35

Woman married at time of treatment

Evan Harris: I beg to move amendment No. 171, in clause 35, page 36, line 19, after ‘then’, insert
‘unless W is a surrogate mother within the meaning of section 1(2) of the Surrogacy Arrangements Act 1985 and’.

Jimmy Hood: With this it will be convenient to discuss amendment No. 172, in clause 42, page 40, line 4, after ‘then’, insert
‘unless W is a surrogate mother within the meaning of section 1(2) of the Surrogacy Arrangements Act 1985’.

Evan Harris: The amendments are to do with surrogacy, which we have been discussing, and are intended to deal with what I consider to be an anomaly in the parenthood provisions. I believe that it is rectifiable, and that not sorting it out will cause avoidable problems. I shall argue that those problems can be solved by way of the amendments or something similar. There does not appear to be a problem in so doing, and significant benefits would result. To support my argument, I shall read from a briefing that I have been sent by Natalie Gamble, a solicitor in family law, who has raised this issue on a number of occasions with me and in public.
If the surrogate is married, neither commissioning parent will be a legal parent at birth. That can cause particular difficulties in respect of cross-border arrangements, which were touched upon earlier, and in respect of the standard UK arrangements. For example, if the intended parents use a married surrogate, they will have to wait until they have a parental order to acquire parental responsibility—a process that can take up to nine months or even a year—and in the interim, they will have no authority to make decisions for their child. That is in cases in which there is no dispute about who is looking after the child, the surrogate mother provided surrogacy within the law, and the child is living with the intended or commissioning parents. In turn, that can cause problems over issues such as child immunisation, because the legal parents need to sign the consent forms.
The solution that was proposed to me, which I now put to the Committee, is to exclude the rule that a married surrogate’s husband is the legal father in surrogacy cases. Although that rule is critical for donor insemination parents, it is not problematic for the law to distinguish between donor insemination and surrogacy cases. The intended father in the vast majority of surrogacy cases could therefore be the legal father at birth. That would give him the general entitlement to act as a parent and enable the intended mother to acquire parental responsibilities before getting the parental order, using the step-parent parental responsibility rules.
The amendments provide a quick way of ensuring that the intended parents—the social parents looking after the child—are able to make those decisions rather than having to track a surrogate and her husband who have ended their relationship with that child and may live many miles away, or even abroad.

Robert Key: On a point of order, Mr. Hood. The hon. Gentleman has been reading a long quote from a document of which the Committee does not have sight. He has based an amendment on that document, a briefing that he received from I know not where—I did not catch where it came from, although he mentioned someone’s name. We cannot be expected seriously to consider the amendment on that basis. It simply is not on.

Jimmy Hood: It is in order for an hon. Member to receive a briefing from any source. If they think it appropriate to refer to it in Committee, that is perfectly in order.

Evan Harris: I was not quoting from any document—[Interruption.] No, I said that I had received a briefing. The Minister receives briefings from officials.

Jimmy Hood: Order. I have given my response to the point of order. I invite the hon. Gentleman to carry on discussing his amendments.

Evan Harris: I am keen to do so. I think that I have been in order, and I have not in my time ever had problems receiving advice.
I have actually finished my point: the amendment would enable decisions to be made in the best interests of children quicker.

Mark Simmonds: If the husband of the surrogate simply did not consent to the treatment, would that not avoid his being the father and thereby negate the necessity of the amendment?

Evan Harris: Clause 35, which relates to a woman married at the time of treatment, states:
“If...at the time of the placing in her of the embryo or of the sperm and eggs...W was a party to a marriage, and...the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage...the other party to the marriage is to be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs”.
That is the type of case that the hon. Gentleman raises, but I am talking about a case in which the husband of the surrogate is happy for the woman to act as a surrogate. He is clearly consenting to the surrogacy arrangements taking place and wants to give the child to the intended parents.
Surrogates provide a wonderful service in such cases, and we have clear laws about the non-transmission of money in that situation. Unless we are to break down surrogacy arrangements in their entirety, which has never been done under Conservative or Labour Governments since 1985, when the provisions were formalised in so far as they have been formalised, it seems reasonable to make the provision that I have described.
I hope that I have dealt with the hon. Gentleman’s point. If the man did not consent, a surrogacy situation would be being created against the wishes of the husband. That would create at best an artificial situation in which he would have to indicate that he was not consenting. That would not be appropriate. The same point applies to amendment No. 172, which relates to a woman in a civil partnership at the time of treatment.
I have case studies, to which I would have liked to refer, but given that the hon. Member for Salisbury objects to the reading into the record of evidence or the giving of examples, I will not do that. However, there is clearly a problem for people in the situation that I have described. I think that the amendment would solve the problem and would not create any new problems. I hope that the Minister will look kindly on it.

Dawn Primarolo: The subject of surrogacy is complex and fraught with difficult ethical considerations. The Human Fertilisation and Embryology Act 1990 and the Bill recognise that by providing elements of certainty, although it is not possible to provide complete certainty, because of the complexity. One of those elements is that if the surrogate mother is married, her husband is treated as the father of the child unless it is shown that he did not consent to the treatment—a point that has been made. That provision reflects the common law presumption that a child born to a woman in a marriage is also the child of her husband. I shall return to that principle in a moment because it is a very important principle that the legislation is designed not to breach. The Bill extends the provision to civil partners, so that the mother’s civil partner is the parent of a child born through assisted conception unless it is shown that she did not consent to the treatment. That reflects the fact that the civil partnership is given the same status as marriage, in recognition of the parental responsibilities.
The hon. Member for Oxford, West and Abingdon has tabled amendments that would introduce an exception to that principle by explicitly removing the provision for surrogacy cases. If a surrogate was married or in a civil partnership, parenthood would be removed from her husband or civil partner, thereby making it possible for the man in the commissioning couple to be registered as the father from birth if he was the genetic father.
I understand that the intention behind the amendments is to make it easier for commissioning parents to obtain parental responsibility where the surrogate is married and to ensure that a commissioning couple who have a child using a surrogate abroad do not face immigration problems on returning to the UK with the child. Surrogacy is, however, a fairly sensitive and complex issue, and I suspect that members of the Committee will hold differing views on it.
Although surrogacy arrangements are not illegal, they are not enforceable by the courts. That is to avoid a surrogate being forced to hand a child to whom she has given birth over to someone else. The clear principle, which the Bill maintains, is that the woman who gives birth to the child is the mother. Having given birth, she may change her mind about handing the baby over to the commissioning couple, and the law recognises that she is entitled to do so. That may be a fraught issue for commissioning couples, but the law is there for specific reasons, and those principles have underpinned surrogacy thus far.
I recognise that the situation that we are discussing would be upsetting, particularly for the commissioning couple, but we must look to the child’s welfare. Removing a baby from a mother against her wishes is not something that the 1990 Act or the Bill encourages, but the amendments would undermine that position. In the unusual circumstance of a surrogate choosing to keep the baby, taking fatherhood or parenthood away from her partner and giving it to the commissioning father—if he is the genetic parent—would open the way for the commissioning couple to claim custody of the child. That would open up untold difficulties and problems.
As I have said, this is a highly sensitive and complex issue, which is fraught with difficulties. In those circumstances, the Committee should not add further difficulties to what is already a difficult situation. That would complicate matters in a way that was not in the child’s best interests, and it is the child’s best interests which continue to anchor our considerations. I recognise that the amendments seek to address a sensitive situation by removing parenthood from the married man in particular situations. However, we cannot breach the other principles that I have outlined, with the consequences that that would have for the child.
The hon. Gentleman touched on some of the other difficult issues relating to surrogacy, such as immigration, parenting orders and adoption. After a lot of consideration by the Government following the debate in another place, I cannot see that it makes sense to move away from the key principles that I have identified. I hope that that puts on the record why the Government remain of that view, and that the hon. Gentleman will reflect and withdraw his amendment.

Evan Harris: I understand the Minister’s point. In the circumstances—which I think are very rare, but could happen—where the surrogate mother does not wish to pass responsibility for the care of the child over to the intended or commissioning parents, giving the commissioning father legal status would give them grounds for custody-type hearings. I doubt that such hearings would be successful, but they could occur and I accept that that is a drawback to the amendment.
In the vast majority of cases, the advantages in assuring quicker parental rights for the commissioning parents—those who look after the child, make decisions for the welfare of that child and should not have to wait as long as they do under current procedures—outweigh those drawbacks. However, I see the Government’s point. A balance must be found, and the Government feel that even in a very small number of cases, a potential legal tug of war between an intended father with parental rights and the surrogate mother would not be edifying. Nothing in this area is edifying when it goes to law, and perhaps the Government recognise that the path of least resistance in respect of creating situations where that might occur, is not to accept the amendments.
As I said, I am disappointed. One would have thought it possible for the law to be changed to ensure that there was no hope of a successful application in such a case. It would mean that, even where the commissioning father had parental rights, he would not be able to exercise them successfully in a legal case in which the surrogate mother was very clear that she did not want to give up the baby. The situation would be the same as it is now, except that in the vast majority of cases, transition would be smoother.
Clearly, those provisions are not in my amendments and the Government have not had a chance to consider that point. I will reflect on what the Government have said and see whether there is a way of dealing with the problem that the Minister has raised. In the meantime, I beg to ask leave of the Committee—including the hon. Member for Salisbury, for whom I have a great deal of respect—to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Mark Simmonds: Briefly, one of the issues that has come out of the interesting debate that we have had about surrogacy—both in clauses 33 and 35, and on the amendments just withdrawn by the hon. Member for Oxford, West and Abingdon—is that there is concern in legal circles about the current working of the legislation in the Bill, the 1990 Act, and the Surrogacy Arrangements Act 1985. The 1985 Act was nearly 25 years ago, and it may be appropriate both regarding mothers and surrogacy, and in relation to the point made by the hon. Member for Oxford, West and Abingdon about fathers and consent and surrogacy—

Ian Gibson: Does the hon. Gentleman agree that there is doubt in some of our minds about the commercial interests of the lawyers in this business? Some of their views, as much as they may be pure, may also be pure for the money that is involved. How do we discern who is in it for the money and who is in it for the principle?

Mark Simmonds: The hon. Gentleman makes a reasonable point, although certainly, those lawyers with whom I have discussed the matter and from whom I have received briefing did not give the impression that they were in it for the money. They are in it to clarify exactly what the law and its intentions are and how that interrelates with other Acts of Parliament, so that they can advise their clients officially and properly on the law and where they stand. However, I accept that it is a complex matter. I also accept that we should not go down the route of commercialising surrogacy, but there are clear inconsistencies. It would give the Committee some comfort if the Minister were prepared to say that she would get people in her Department to consider it and, at some appropriate point, to bring it back to the House for discussion.

Dawn Primarolo: I draw the hon. Gentleman’s attention to the fact that the Government gave a commitment to the scrutiny Committee on the Bill that we would review the regulations dealing with surrogacy. It is a delicate and difficult issue, precisely because the Committee raised a number of issues that we were unable to deal with at that point. I believe that the Committee accepted that that was a sensible way forward. That is intended to happen after the Bill has completed its progress and received Royal Assent. It is necessary to connect with other policy areas and to reflect on some of the points made. I am not saying that our minds are made up as to the conclusion. It is worthy of reflection and consultation. I am happy to confirm that, in answer to both hon. Gentlemen’s concerns.

Question put and agreed to.

Clause 35 ordered to stand part of the Bill.

Clause 36 ordered to stand part of the Bill.

Clause 37

The agreed fatherhood conditions

Question proposed, That the clause stand part of the Bill.

Mark Simmonds: The clause deals with the conditions that must be met for a man to be treated as the father of a child, irrespective of whether his sperm was used. The man does not have to give written consent under the conditions if he is married to the woman being provided with the treatment, as the agreed fatherhood conditions apply only if a couple are unmarried. If a couple are married, the husband does not need to give written consent, yet in clause 35, a married man must show that he did not consent. Must the fact that he did not consent be put in writing, or can it be verbal? If there is no procedure requiring married couples to give written consent, how can it be confirmed that a father did not consent to the treatment?

Dawn Primarolo: The hon. Gentleman asks about the opt-out, when it can occur and what form is necessary. The consent to fatherhood agreement can be withdrawn only up to the point at which the embryo is transferred into the woman. As elsewhere in the Bill, a lack of consent does not have to be put in writing, but in practice, evidence will be needed that consent has been withdrawn.
Although writing is not specified, it will probably need to be in writing, or at least absolutely clear, that consent has been withdrawn. That is a feature of different parts of the Bill. The hon. Gentleman will remember that we discussed the fact that although it does not actually say that it must be put in writing, that is the best way to ensure that it has been agreed. However, other clear recorded indications that consent has been withdrawn are not disallowed.

Question put and agreed to.

Clause 37 ordered to stand part of the Bill.

None

Further provision relating to sections 35 and 36

Question proposed, That the clause stand part of the Bill.

Mark Simmonds: I have one question about clause 38 and how it will operate in practice. If a donor-conceived child is implanted in a woman and both the parents consent but are unmarried, and if during gestation the mother marries a different man, the husband under common law becomes the father. That is right. What happens if the woman who has had the embryo implanted enters a civil partnership? Does the new civil partner become the parent post-embryo transfer?

John Pugh: I was hoping that the Minister could enlighten me along similar lines. I need to clear my head about this. As I understand it, if the father is the genuine, biological father through the normal route, he retains parental rights even if the relationship breaks up after pregnancy. If, on the other hand, IVF is the procedure through which the child is generated, it appears that if the relationship breaks up mid-process, all rights are forfeited. I think that they are forfeited regardless of whether the broken-up-with partner is the donor or not—it does not matter if the donor is someone else or the partner concerned. If the person then remarries, the newly married partner legally assumes the responsibilities—I think that I am correct in saying that.
We seem to have a degree of legal asymmetry, if I can put it like that. It would seem to be that in the case of civil partnerships it is, in a sense, a choice, whether the new civil partner does or does not take on the role and responsibilities of the parent. Does the Minister recognise that legal asymmetry? Is that legal asymmetry just the result of a read-across from civil partnership on one side and marriage law on the other side? Is it simply the consequence of other bits of legislation? Or are those differing responsibilities and rights created by the Bill itself?

Dawn Primarolo: In the circumstances in which the hon. Member for Boston and Skegness described, it would be presumed that the new husband was the father of the child. If it was a civil partnership, the new partner would become the recognised parent, because the relationship was there before the child was born.

John Pugh: I hate to correct the Minister, but the explanatory note says that there is
“no parallel presumption at common law for people who enter a civil partnership.”

Dawn Primarolo: If the marriage is dissolved and the person enters into a civil partnership, there is no common law presumption of legality to the original donor, which would therefore be the legal father. The hon. Gentleman is quite right. That is to do with the point at which it goes back to the previous clause, at which point the consent was active and the embryo was implanted into the woman.
This is much too complicated, Mr. Hood. The hon. Gentlemen should write to me so that I can understand the unusual circumstances that might arise. The hon. Member for Boston and Skegness has put on record a case that I understand, but I am not so clear about the case detailed by the hon. Member for Southport. I will then send them a letter.

Michael Penning: Will the Minister give way?

Dawn Primarolo: Just a moment. Please let me deal with one complex point at a time. I will then give to the Committee the legal route that the case would follow and the consequences.

Michael Penning: Surely it would be more logical and helpful to the Committee—some of us did not follow what the hon. Gentleman was saying either—if the Minister could send to the Committee a copy of the transcript when it appears tomorrow, so that we know where we are, rather than having correspondence flying between one Front Bencher and another.

Dawn Primarolo: That is a helpful intervention, and it corrects my position. The hon. Member for Boston and Skegness outlined a scenario in which one legal relationship has broken up and another has been formed. He wishes to see the interaction between the consent given originally and the new circumstances. The point at which consent could be withdrawn has passed because it is during the pregnancy. At that later moment, what is the difference between being a married couple as opposed to a civil partnership, and what rights are transferred to each person in those circumstances? That is the mess that I have managed to get myself into. That is what I understand the question is and that is what I will seek to answer by way of “if this happens, that happens” to the Committee so that it can see where the legal responsibility finally ends up in either relationship. Would that be helpful?

Mark Simmonds: I am grateful to the Minister for her response. I am also pleased that she understands the question that I am asking, and the reason behind it. It would be helpful for the Committee to understand the response to that particular situation. I suspect, and I think that this was the point that the hon. Member for Southport was making, that it is not a simple matter of reading across from marriage to civil partnerships. Disparities will be exposed, and that was the point of asking this particular question. If the Minister can confirm that in writing after she has read Hansard tomorrow, that would be very helpful. That will have a knock-on impact for subsequent clauses that we will be discussing later on.

Dawn Primarolo: Absolutely, and it is about the common law presumption to which we have referred before. We need to focus clearly on that before we enter discussions on some of the other clauses dealing with surrogacy later in the week. I accept that point.

Evan Harris: I have kept out of this one because I am not clever enough to follow the strange family arrangements that the hon. Member for Boston and Skegness and my hon. Friend the Member for Southport feel so uncomfortable about discussing. This is probably an obvious point, but if there is not a read-across between marriage and civil partnership, does that lead to problems of discrimination? It is my understanding that it was the intention of the law, and policy, to ensure that as far as possible—even if it means converting from common law to statute law to provide that equality—there should be equality between civil partnership and marriage because someone could claim that they were not being given a presumption that other people were and that that was a significant infringement of their rights to equal treatment. There is a presumption in one case but not in the other and civil partners have to strive to overcome that extra barrier. I have raised that as a question for the Minister to consider.

Dawn Primarolo: I will reflect on that point. However, the Government have signed to say that the Bill complies with equality legislation so our lawyers will have checked it.

Question put and agreed to.

Clause 38 ordered to stand part of the Bill.

Clause 39

Use of sperm, or transfer of embryo, after death of man providing sperm

Question proposed, That the clause stand part of the Bill.

Mark Simmonds: Clause 39 is quite important because it relates to the use of the man’s sperm after his death, irrespective of whether the embryo was implanted before or after his death. Subsection (1)(c)(i) refers to the circumstance where a man has consented to the use of his sperm after his death. Will the Minister confirm whether it would be standard practice on the consent form relating to clause 37 for a man to also give consent regarding use of his gametes after his death, or whether that is completely separate? Also, how does it work in relation to married couples, where a consent form is not required because consent is presumed? Can it be proved otherwise? Is specific post-death consent required?
The further point I want to make about clause 39 is that subsection (1)(d), which I do not understand, gives the woman the right to choose whether the man is considered the father of the child. Presumably, if the original father, prior to his death, consented for his genetic material to be used for the treatment for the purposes of creating a child after his death then he is the genetic father. Unless the woman has remarried, and therefore under common law the new husband is the father, why does the woman have the right to be able to choose whether the man is considered the father? He is the father; he is not an anonymous donor. Perhaps the Minister could also explain—I know that the right hon. Member for Coatbridge, Chryston and Bellshill will be interested in this—why there is a difference between England and Scotland on the 42 days and the 21 days requirements.

John Pugh: I just want a simple clarification, but a more basic one. The clause states that if the man has agreed in advance and the woman chooses this within 42 days of the birth of the child, the man can be identified as the father of the child, provided, as the hon. Gentleman has said, that the woman is agreeable. If, as in that case, the sperm of a deceased person is being used, is there any limitation, whether biological, physical or legal, on how long that sperm could have been around? Theoretically, in legal terms we could be talking about a 10 or 15-year period and I wonder whether the law allows any possible period to be used. That could have significance for all sorts of inheritance issues.

Dawn Primarolo: There are no inheritance issues here.
Clause 39 replaces, for future cases, provisions of the Human Fertilisation and Embryology (Deceased Fathers) Act 2003. Those provisions relate to the use of a man’s sperm to create a child with his consent after he has died. The clause provides that, where a woman conceives a child using the sperm of a man who has died, or where an embryo was created with his sperm before he died, but was transferred to the woman after his death, and the man had consented to the use of his sperm in this way after his death and the woman who carried the child gives notice in writing within 42 days—or in Scotland, within 21 days—after the birth of the child that the man is to be the father, then the man is to be treated as the father of the child, for the purpose of birth registration alone. That applies whether the assisted conception treatment of the woman was in the UK or elsewhere. Clause 39(1)(d) encompasses the right of the woman to choose to record the man on the birth certificate, which is symbolic. The man will be deceased, and that is why the woman has the right to choose.
The difference between Scotland and England and Wales is connected to birth registration, which is a devolved matter. The provision in the Bill reflects the fact that the standard time period in each country for birth registration is different—before the hon. Gentleman asks me, I do not know why, but it is—and it reflects the difference on devolved matters. That is what we are seeking to ensure. It is a standard part of the HFEA’s consent forms to ensure that such consent has been given when embryos and gametes are stored. The measure builds on the Act to which I referred, which I hope clarifies—

John Pugh: Will the Minister give way?

Dawn Primarolo: I have not concluded my remarks. I was going to give way at the end of my sentence but I have forgotten what I was going to say.

John Pugh: I think that the Minister answered my question. I heard her say that the measure is for birth registration purposes only and that it will not affect inheritable rights whatever.

Dawn Primarolo: I can confirm that that is the case—the measure is for birth registration. It allows parenthood only to be recorded symbolically on the birth certificate and confirms no other legal status to the father—nor could it—and therefore no inheritance rights for the child. If a father wished to leave some of his estate to his unborn child, he could make that clear in his will. That is how such a situation would be dealt with.

Mark Simmonds: I am grateful to the Minister for her response but, unusually, she did not answer one of my points—I may have misunderstood or misheard what she said—on paragraph (d). It appears that a biological father who donated sperm prior to his death could, by the choice of the woman who has the child, never be placed on the birth certificate in the first place. He would therefore not be the father even if he consented for his sperm to be used for the purposes of creating the child. I do not understand what the defence for paragraph (d) is. The Minister explained what it does, but not why, nor why it is in the Bill. If the woman does not choose the biological father to be named as the father, and the mother has not remarried and, therefore, under common law, found a new father, who will be the father of the child?

Evan Harris: I remember the debates on the 2003 Act, which began life as Tony Clarke’s private Member’s Bill—many of us remember him. It was predicated on the fact that Diane Blood, in that famous case, was keen to ensure that her late husband’s name could be on the birth certificate, prospectively at least, even if she were to receive treatment abroad. It was the view of the Committee that considered that Bill that the woman should be able to reflect on that issue after the birth of the child. The legislation was designed to provide maximum flexibility to a woman in a difficult situation, who was recently bereaved or who only recently became a mother, so that she could decide whether she wanted to put her late husband’s name on the birth certificate.

Mark Simmonds: I am grateful to the hon. Gentleman for that helpful intervention—it shines some light on the measure. I was in the House in 2003, but the private Member’s Bill to which he referred passed me by. Will the Minister confirm what the hon. Gentleman said, because I did not get the impression that she put forward a defence of paragraph (d)?

Dawn Primarolo: I referred to paragraph (d) and the right of the woman to choose to record the man’s name on the birth certificate, and said that it would be symbolic in the sense that it would not convey any further rights.
The hon. Member for Oxford, West and Abingdon asked what needs to happen. Both the man and woman would need to consent to the former’s name being put on the birth certificate. That allows the woman to decide finally whether to do that and gives her the final choice. That is not a right that can be enforced against another without their consent, so if there was not consent, it could not occur.

Question put and agreed to.

Clause 39 ordered to stand part of the Bill.

Clause 40

Embryo transferred after death of husband etc. who did not provide sperm

Dawn Primarolo: I beg to move amendment No. 58, in clause 40, page 39, line 15, leave out ‘a’ and insert ‘the’.
The amendment makes a minor drafting correction to clause 40 and is purely technical in nature. It changes the words in the clause to read “the man”, rather than “a man”, as currently drafted. That only recently came to light and was considered the appropriate drafting.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

Mark Simmonds: We are getting into the nitty-gritty of the Bill, as the clause relates to the transfer of an embryo after the death of a man who was treated as a father in cases where donor sperm was used. There is a great deal of concern among the public about that, and certainly a large number of people have written to me about the clauses that we are about to discuss. I want to understand two things about the workings of the clause. I will not repeat the arguments that were made on the Floor of the House and in this Committee about the importance of the male in bringing up children, because members of the Committee have different views about that, but perhaps the Minister will explain how subsection (2)(b) relates to clauses 42 and 43 and whether there is an exact mirror and read-over from different-sex relationships to same-sex relationships and from marriages in heterosexual relationships to civil partnerships in same-sex relationships.
It seems to me that clause 40 will enable someone who is not married, has not provided the sperm and so has no genetic relationship with the child and who is not alive to be the parent of that child on its birth certificate. It might be that no intimate relationship at all took place between the two people who would potentially be the parents of that child, whether they are a heterosexual or a same-sex couple.
The context of this and the prism through which we must look at all the debates on these clauses is that the welfare of the child must be paramount. I just question at this stage whether a couple that did not even have an intimate relationship, certainly were not married, might not even have been in a civil partnership, had no genetic contribution to the child’s make-up and are not alive would be appropriate people to have as an official parent of a child, and that is in the context of the importance of the child’s welfare.

John Pugh: My concern is about what birth certificates are now intended to do. Normally, they are indicative of someone’s assumption of legal responsibilities or biological connection with the individual named on the certificate, or both. In this case there appears to be a suggestion that the person named on the birth certificate should fulfil one criterion: a previous willingness to take part in an IVF programme with the person whom they pre-deceased. That is a big extension, therefore, in our view, of the role of birth certificates. The Minister said that birth certificates can do something symbolic. I certainly did not realise that. Perhaps there is scope for birth certificates in respect of all sorts of strange, exotic things, but we ought to stick to a more rigid view of what they should do.
What is the Government’s reason for such an obvious and quite definite extension of the use of a birth certificate? What is the thinking behind it? Is it to provide an explanation to the child about their origin? If so, and if the child does not look any further, it would clearly give an inaccurate explanation of the child’s origin. It is obviously preferable to talk about storks and gooseberry bushes, but is putting the child off the scent by not letting them think any further than that they were conceived with the person named on the birth certificate as an agent in some way in the interests of the child? If so, is that obvious?
I accept what the clause does and I am not necessary agin it. However, I see it as extending what birth certificates do and I want to know the Government’s rationale for doing precisely that.

Evan Harris: I heard what my hon. Friend said and the fair way in which he put it. Obviously, I could come up with an example that was far removed from the intention of the clause and a direct consequence of the 2003 Act. When that was made law, and if it was to apply to a married couple who may have been married for a year, it would have been wrong not to apply it to a couple who may well have been receiving IVF because the man was infertile, but who had been in a non-married relationship for 20 years and, indeed, had had other children before infertility intervened on the man. There would therefore have had to be a parallel provision for unmarried men in the case of deceased fathers.
We must remember that such a provision was sought by Diane Blood, who campaigned hard for it. She was supported by the newspapers that often worry about fatherhood, but they were very clear that it was appropriate in those circumstances. We can always say that that means that such provisions could apply to someone who was not in an intimate relationship, who had known the woman for only a short time, but who had been treated together with her and then died. I do not know whether there would ever be such a case. In the end, we cannot design legislation to fit the most extreme cases.

John Pugh: I do not regard the introduction of the Diane Blood case as at all helpful in our discussions. In that case, the name of the father was on the birth certificate and thus would have shown the biological origin. That is what birth certificates have traditionally done in part, although not exclusively.

Evan Harris: Birth certificates do not reflect the genetic origin. They reflect the legal father, who is often the social father. Now is not the time to go into the issue of non-paternity, but lots of milkmen, even in Southport, would be very afraid of the implications of genetic fatherhood—if I can use that term in its general sense, even if it is a bit “Carry On”. Birth certificates are not a reflection of genetic parenthood. I am not claiming that he does, but if my hon. Friend wants that to be the case, there would be a lot of paternity tests and a lot of frightened milkmen.

John Pugh: I referred to an either/or situation. I am sure that my hon. Friend would accept the proposition that, in the past, a birth certificate traditionally showed people who should take legal responsibility for the child or someone who had a biological connection with the child. We have a proposition where neither of those things happen.

Evan Harris: My hon. Friend is correct. It is a consequence of the 2003 Act. The explanatory notes state:
“Clause 40 makes similar provision to clause 39 for the case when donated sperm has been used.”
He is right to identify the fact that it is the coming together of two slightly incompatible things: first, the wish to ensure that men who are infertile, but treated together with a woman, are treated fairly and equivalently to men who are using their sperm when that is required, which is the general, uncontentious theme of the clause.
Secondly, in significant circumstances, the deceased father should be recognised. Those circumstances have to be met in order to satisfy the need for bereaved women in such situations to recognise the relationship that they had and that had brought about directly or indirectly the birth of the child. However, I accept my hon. Friend’s point. It is a slightly uncomfortable marriage of the two issues, and he is right to draw out the difference. I am keen to say that I support the clause, for the reasons that I have given, although it is a difficult translation of two different provisions.

Dawn Primarolo: Clause 40 relates to the registration of a father when a child is born to a woman as a result of the transfer of an embryo created with donor sperm when her husband or unmarried male partner died before the embryo was transferred. It contains two measures, relating respectively to married women and to women who were not married, but had a fatherhood agreement with a man. It enables the child to have official recognition of the father. The clause replaces the existing measure in the 1990 Act and recognises the new provision in the Bill for unmarried couples to have a fatherhood agreement when donor sperm is used.
Subsection (1) provides that if an embryo was created with donor sperm while the woman was married, but her husband died before the embryo could be transferred to her, the man can be registered as the father of the child in certain circumstances: the husband must have consented in writing, and must not have withdrawn that consent, to the embryo’s transfer to the woman and his registration as the father; the woman must have decided within 42 days of the birth of the child, or 21 days in Scotland, that the man will be registered; and there must be no other parent—for example, the child must not have been adopted.
Subsection (2) provides that if an embryo was created with donor sperm through assisted conception in a UK-licensed clinic at a time when the woman was not married or in a civil partnership, but her male partner died before the embryo could be transferred to her, the man can be registered as the father of the child in the following circumstances: the man must have consented in writing, and must not have withdrawn that consent, to the embryo’s transfer to the woman and his registration as the father of the child born as a result. Additionally, immediately before his death, the agreed fatherhood conditions set out in clause 37 must have been in place, the woman have decided within 42 days from the birth of the child, or 21 days in Scotland, and there must be no other father—for example, the child must not have been adopted.
The provisions will ensure equivalence between heterosexual and same-sex couples. The intention is to achieve equality, but the hon. Member for Boston and Skegness is absolutely right to pick up the point that underpinning it is the additional key requirement that under section 13(5) of the 1990 Act, clinics must consider the welfare of any child born before providing the treatment.
The hon. Member for Oxford, West and Abingdon is right that the 2003 Act established that a deceased person could, in certain limited circumstances that I have described, be the parent of a child for the purposes of the birth certificate only. The Bill updates that principle only to reflect equality for same-sex couples. Yes, there is a read-across. The provisions address cases in which a couple has created an embryo using a woman’s egg and a man’s sperm. They provide for the woman to proceed with treatment using an embryo that was created by the woman and her partner as a couple. It does not introduce any new requirements; it brings the equality requirements together, ensuring that the 2003 Act that established the principle follows through. I hope that I have clarified the matter.

Question put and agreed to.

Clause 40, as amended, ordered to stand part of the Bill.

Clause 41 ordered to stand part of the Bill.

Clause 42

Woman in civil partnership at time of treatment

Question proposed, That the clause stand part of the Bill.

Mark Simmonds: I have a couple of examples that the Minister might like to consider overnight so that she can include them in her correspondence tomorrow. However, my first question does not relate to that matter. It is not clear what happens if a civil partner does not consent. Am I to assume that the same applies in civil partnership as with marriage—that, as we discussed earlier, consent is assumed?
I shall give examples of two complexities. First, what happens in a civil partnership in which both partners consent—by implication or otherwise—and the civil partnership is legally separated post-implantation of the embryo and one member of the original same-sex couple marries a man during the gestation period? Is that man the father? Does common law apply in that situation? Is that man therefore the parent?
The second example has the same initial set of circumstances. If there is a legal separation of a civil partnership, but a new and different civil partnership is then put in place, who is the parent? Is it the initial civil partner, when consent was assumed for the implantation to take place, or is it the new civil partner with whom the pregnant woman has entered into a civil partnership? Alternatively, is it up to the pregnant woman to make a choice between the two?

John Pugh: It is probably my lack of attention to detail that prompts me to ask this question. The explanatory notes give the idea that there could be two sorts of arrangements: one in which civil partners happily consent to the arrangement, and the other in which only one partner does so. Similar provisions seem to apply to married couples, so the arrangements are equivalent. I understand that, and I know where everyone is coming from on that question. However, that might create problems further down the line for couples and civil partners.
If a child enters into the marriage or civil partnership but is not wanted, one would suppose that duties in relation to the child—whether imposed by the Home Office or others—were shared collectively.

Dawn Primarolo: It is not a question of whether a child is wanted; it is about who is mentioned on the birth certificate—that is all. The route that the hon. Gentleman is going down is about a child not being wanted. If there is a separation in a relationship and there are existing children, the question of how the family unit bonds is a matter for the couple. The Bill does not enter into that in any shape or form. Indeed, no legislation enters into the situation when there are stepchildren.

John Pugh: I am grateful to the Minister for that clarification. What I think she is saying—I shall tell the Committee and she can say whether I have the gist of it—is that the clause does not alter any other piece of domestic legislation, family law or otherwise, but that it simply relates to the very technical, specific and precise matter of whether someone wants to go on the certificate.

Gary Streeter: The clause is the first in a series of measures giving legal effect to same-sex couples—in this case lesbian couples—having IVF, in some cases on the NHS. I hope that the Committee will forgive me if I make a few comments to suggest why the clause should not stand part of the Bill. In doing so, I am speaking for myself—not for my party or as a Front-Bench spokesperson.
The clause should not be allowed to pass without making some comment to reflect a considerable amount of opinion in the country. As we legislate on behalf of the whole country, it is important that certain opinions are voiced, and I hope to do so in a reasonable manner.
I wish to express concern about the clause and subsequent clauses. Some people argue that because gay adoption is legal, it is only natural that same-sex couples should have the right to equal access to IVF treatment. The clause deals particularly with the birth certificate arrangements in that instance. I certainly understand the argument in terms of equality, but I believe that permitting IVF for lesbian couples is wholly different from lesbian adoption. I say that because when a child is conceived who is later adopted by a lesbian couple, they at least had the chance of having a father and might well have had a father for a certain period of time. That child already exists. We are talking about the state facilitating the process of a child being created who will have no chance whatsoever of ever having a father during the duration of his or her childhood, and the Bill has precisely that effect. Do you want to slap me down, Mr. Hood?

Jimmy Hood: No yet.

Gary Streeter: I am grateful.
I do not intend to repeat this speech during our proceedings on the remaining clauses in the cluster. That is why I hope that I can have my say on this clause, which leads us into the other clauses.
In clause 45, we have the chilling words
“no man is to be treated as the father of the child.”
I suggest that those words raise huge questions about child rights that have so far been given no attention in our deliberations. We are talking about two women creating a child who will never have a father. What is wrong with that? All my instincts are against that notion as it flies in the face of common sense and nature. I also believe that many of our constituents do not know that this is taking place through the single-woman route, or that it will be going on once the Bill becomes law. I think that many of our constituents would be puzzled by same-sex couples having IVF on the NHS, given the pressure that the NHS is under.
None of that may be enough to persuade the Committee that the clause should not stand part of the Bill, so let us consider some research on why the matter is so important. Of course, it is our responsibility as legislators to look at evidence and not to rely simply on our own instincts. Surely we must not do anything today that would prejudice the paramount interests of the child in light of the current balance of research. What, therefore, does the research say about how we should approach the subject? An extensive research base unequivocally demonstrates that fathers are important and bring something distinctive to the parenting process that is different from what mothers bring. The Minister might remember that after a few refusals, she allowed me to intervene on Second Reading to ask whether the Government thought there was any difference in the process of a loving same-sex couple—two mothers bringing up a child—and a loving mother and father bringing up a child? Is there no advantage at all in having a father? The Minister was good enough to say that that was not the Government’s position. She must therefore accept that having a father can be important in the circumstances that I have just described—[Interruption.]

Jimmy Hood: Order. Hon. Members must give the hon. Gentleman the right to have a hearing.

Gary Streeter: Thank you, Mr. Hood.
Fathers bring something distinctive to the party. One can only handle research in relation to children responsibly by concluding that we must assume that the best interests of the child are, on average—although we know of wonderful examples that buck the trend—less likely to be met in the absence of a father. In the light of the very extensive body of research, we have to conclude that it would be wrong of the state to facilitate the deliberate creation of children with the intention that they should be denied the chance of ever having a father for the duration of their childhood, yet that is what the clause does. The body of research is so extensive that I cannot refer to all of it, but I want to cite a few texts. They have not come to me from lobby groups, so I think that my hon. Friend the Member for Salisbury will be happy for me to mention them.
The first document is called “Theorizing the Father-Child Relationship” and it was published in 2004. It states:
“Recent work suggests that fathers play a much larger role than mothers in the socialization of children’s emotions, especially in anger regulation.”
Another report called “Toward Disentangling Fathering and Mothering”—I am not sure who comes up with these snappy titles—states:
“there is support here for the relative importance of fathers’ (as compared to mothers’) support of both sons and daughters. Youth who report feeling supported by their fathers are better able to engage prosocially outside the home...Lastly, positive fathering tends to be linked to lower levels of later depression for early adolescent girls, whereas positive mothering tends to be linked to lower levels of later depression for early adolescent boys.”
In other words, mothers and fathers bring different things to children.
I have similar quotes, but I will give just one more:
“Our longitudinal findings for traditional families seem to point to a unique contribution of the father to the child’s emotional security”.
That is from a report called “The Uniqueness of the Child-Father Attachment Relationship”.
A smaller body of research focuses narrowly on studying same-sex parenting, about which we heard quite a lot on Second Reading. I think that the BMA sent all hon. Members a briefing on the subject, which refers to some findings. The BMA report states:
“A substantial amount of research has been carried out on the parenting skills of lesbian couples. In the early days, research focused upon women who had started a family in a heterosexual relationship but continued to raise their children in a lesbian relationship. More recently, research has concentrated upon lesbian couples who seek to have a child through donor insemination at a licensed fertility clinic”—
as would be permitted by clause 42. It continues:
“Social research on children born to these families has given similar findings to those children born to solo mothers. Their emotional and psychological development is comparable to children born of donor insemination to two heterosexual parents. In fact, the second female parent often has greater parent-child interaction than do the fathers in the heterosexual couples.”
That seems to be very supportive of the parenting skills of two mums, as opposed to a mother and a father. On the basis of that briefing, one might have presumed a supporting reference to a selection of key texts to define that “substantial amount of research”. In reality, however, the statement in question is backed by just one footnote, which cites just one 11-year-old journal article—hardly an extensive research base.

Jeremy Wright: My hon. Friend will tell me straight away if he intends to come on to this issue in his speech. Does he share my concern that as the child of such a practice grows up, he or she will instinctively understand that it cannot be right that both of his or her mothers were the only people involved in his or her conception? Is he therefore concerned about the effect on the child of that realisation and where it may lead?

Gary Streeter: I did not intend to come on to that point in this speech; I made it on Second Reading. However, my hon. Friend is right. I think that I said on Second Reading that that realisation could only add to the turbulence of the teenage years—the self-discovery, the identity crisis that many hon. Members in this Room have clearly gone through and possibly one or two still are. That realisation certainly cannot help, and I am concerned about that.
There is other research on the subject, most of which is linked to somebody called Professor Susan Golombok, whom we heard quite a lot about on Second Reading. She has written extensively and almost exclusively—hardly anyone else seems to write on the subject with the same authority as her. A paper that she co-authored called “Children with Lesbian Parents”, published in the journal Developmental Psychology in 2003, stated that
“it may be the involvement of a second parent rather than the involvement of a male parent that makes the difference.”
Notice the use of the words “it may”. That is hardly conclusive. It could equally be argued that it may not.
In another journal, Golombok et al go on to say that the loss of a parent through relationship breakdown—

Brian Iddon: On a point of order, Mr. Hood. My understanding was that the House had been given a chance to debate the need for a father, admittedly not on this clause. As Chairman of the Committee, are you now allowing a debate on the need for a father, which the hon. Gentleman appears to be reopening? I would welcome your ruling.

Jimmy Hood: The hon. Gentleman knows that specific clauses were given permission to be decided on the Floor of the House. The clause that we are discussing now is the business of the Committee. The hon. Member for South-West Devon is perfectly in order when speaking to a stand part debate.

Gary Streeter: Thank you, Mr. Hood. I have nearly finished. I apologise for detaining the Committee for so long, but I think that the voice needs to be heard.
I am talking about the further research of Professor Golombok, who says that perhaps it is just the loss of a parent through relationship breakdown, whether heterosexual or homosexual, that is the real engine for prejudicing the best interests of the child. That is interesting and makes sense, but fails to take account of the fact that the only study of relationship stability within the context of civil partnership arrangements was done in Sweden, where such relationships have been legal since the early 1990s. That study showed that male gay couples are 50 per cent. more likely to break up than married heterosexual couples and that the rate of partnership break-up for lesbian couples is about double that for gay couples. It does not help the argument to postulate that the problem is discordant relationships, because that is much more likely to face the children who, sadly, might be coming into existence as a result of clause 42.

Dawn Primarolo: Does the hon. Gentleman accept that what counts in every circumstance is the quality of the parenting? For instance, where children are sent away to boarding school at an early age, they are removed from their parents, but the quality of their relationship continues, even though they are separated for long periods. The constant presence of a particular family mix is not the guiding point in the development of children, but rather the fact they are loved and valued and the quality of their relationships, regardless of the structure of the family.

Jimmy Hood: Order. The Minister is taking a wee bit long over her intervention.

Gary Streeter: I have tremendous sympathy with what the Minister said. She might be interested to know that we did not send our children away to boarding school—

Dawn Primarolo: I was not talking about you.

Gary Streeter: Okay. I am saying that because we did not want to be separated from our children, but I take her point. That is why I would rather a child was placed for adoption with a gay or lesbian couple than left in local authority care, because the presence of two nurturing parents for that child has to be better than local authority care.

Evan Harris: The hon. Gentleman argued in part that because certain relationships were more likely to break down than others, people in such relationships should not be allowed to be parents—at least through NHS provision. Perhaps he is arguing against the clause standing part. Yet that is the only area that he is choosing. Let us say that one part of the country was found to have, on average, a greater rate of relationship breakdown—say, Devon. Would he argue against IVF being provided by the NHS in Devon? If poor people had a higher rate of relationship breakdown, would he use the same argument? How can he say, because there is a general issue in Sweden, that that is translatable into policy applying to everyone in that situation?

Gary Streeter: I am not saying that of course. I am asking whether the state should be facilitating the creation of a child, from a same-sex couple, who will never have a father. Is that what we should be doing? Is that what we should be doing without consulting our constituents widely? The reference to Sweden was simply to make the point that the studies that Professor Golombok produces are open to challenge. However, I shall not go into further detail, because we have only a few moments left before we are required elsewhere.
When the Minister replies, she may talk about human rights. I understand the human rights position, but I believe that the balance of human rights between two adults who want a child and the human rights of the child yet to be born can be broadly weighed equally. Having looked at the matter fairly carefully, I do not think that a successful challenge could be brought under human rights legislation. As the Minister will know, IVF for same-sex couples, or even single people, is prohibited in France, Italy, Germany, Austria, Switzerland, Norway, the Czech Republic and Portugal, all of which have signed up to the European convention on human rights. That we have incorporated the convention into UK law is not important—it is the same set of values and rights as those countries also embrace, and they do not have a problem with human rights. There are members of the Committee who think that perhaps I am on a flight of fancy. I am saying that on this, the UK is out of step with most of our European colleagues.
I have two more points to make. The first is that fathers are important and clause 42 takes us in the wrong direction. Over the last week or so, a very nice White Paper has been produced by the Secretary of State for Work and Pensions and the Secretary of State for Children, Schools and Families. It says:
“Fathers’ involvement in their child’s life can lead to positive educational achievement, a good, open and trusting parent-child relationship during the teenage years and reduce the risk of mental health issues for children in separated families. Engaging fathers around the time of their child’s birth, including through being registered as father, is important in establishing that close involvement.”
The Government are promoting fathers on the one hand, but through this legislation they are, in my opinion, condemning some children in the future to never having had a father. The Committee should consider that extremely carefully. On that point I will sit down.

Desmond Turner: I hope that the Committee will resist the hon. Gentleman. For one thing, if he was successful and the Committee did not agree that clause 42 should stand part, it would not prevent the provision of IVF to a lesbian couple. The clause deals with how the other member of the couple is to be referred to and that is all. As to the principle that he has been expounding, the House dealt with that at length, and it was very heavily carried on a free vote. The amendment demanding the need for a father in those circumstances was soundly defeated. It is not reasonable to try and circumvent that decision in this way on this clause and in any event, it would not have the effect that he desires of preventing IVF treatment for lesbian couples.

Evan Harris: We had this debate to some extent on Second Reading and in the Committee of the whole House, and I am not going to repeat the points that I made there. However, I want to make three brief rebuttals in support of clause stand part. First, what the Government seek to do is absolutely right and it does not need to be done on the basis of human rights. I have never argued that it is anything to do with human rights. It is about allowing families to get on with their lives without the state intervening to block them from doing so.
We are in an interesting political situation. I do not mean to be party political, but there is an issue of the state not interfering too much with consenting adults, and then some people in Parliament argue that the state should specifically deny and interfere with certain family arrangements. If we are going to do that, there must be good evidence for doing so. The other side does not need the evidence; the burden of evidence falls on those who wish to discriminate and in this case, there is no good evidence that can be adduced. However, the evidence that the hon. Member for South-West Devon has attacked—in moderate terms, I accept—from Professor Golombok and others, is good evidence. The evidence that the hon. Gentleman cites does not relate to the sorts of families we talk about. Indeed, in his quotes from a book and a report there was no read-across between lesbian couples and other families. The arguments against the measure fail at the first hurdle. They fail to demonstrate that there is any basis on which to discriminate in a positive way. There is no evidence that children do better with heterosexual couples than with same-sex couples.
Secondly, the comparisons that are made in the work of Professor Golombok, formerly of London university, now of Cambridge university, are correct. They compare heterosexual couples and their children with same-sex couples and their children and show that there does not appear to be any problem. These people are academics; they do not say that there are definitely no problems and therefore the policy is this. It is right to point out that they use the word “may”, but in so far as they draw conclusions, they do not find that these children have any particular problems, and they have now looked at them, albeit in small numbers, for quite some time.

Sitting suspended for Divisions in the House.

On resuming—

Evan Harris: I was saying that, first, the onus should be on the discriminators and the interferers to show that there is a problem with families of same-sex couples, but there is no evidence showing that there is, and, secondly, the evidence that the children do well is good, but I will not go into that.
I wanted to take issue with the argument made by the hon. Member for Rugby and Kenilworth, who is not in his place, that somehow having lesbian parents is not going to help with the turbulence of teenage years—a view that the hon. Member for South-West Devon agreed with, but I think is wrong. The only problem that can be specific to those children is that they might be bullied. The best approach to that is to stop the bullying, not to deny those who would be bullied the chance to live. That is an argument for saying that mixed-race children should not be allowed to be born because they might be bullied. It is an argument—I am not saying that the hon. Member for Rugby and Kenilworth was saying that.
The Golombok research shows that, despite any bullying that might take place—I hope that there is little of it now—and despite any feelings that the hon. Member for Rugby and Kenilworth in an intervention attributed to them, those children do very well and are psychologically well adjusted. It cannot be argued that having lesbian parents cannot help with the turbulence of teenage years. I respect the way in which the hon. Gentleman made his case, which he is entitled to do. I am not implying that he is motivated by prejudice, for example, but I think that his arguments are wrong.
Finally, even if it could be shown—I do not think that it can be—that, on average, children in these families do worse, that is not an argument for not allowing the families to exist and for the children not to be born. That is not simply for the reason that it must be better to be born, but if one argued that people had such a hard time that it would be best not to be born, where would it end?
We know that, sadly, on average children from poor backgrounds do not do as well as children from wealthy backgrounds. There is evidence for that. Yet, through the NHS, the state provides IVF for such families, despite that average outcome. I am not for one moment suggesting, and I do not think that the hon. Gentleman would suggest, that clinics should have to consider the need for two incomes or that the birth certificate arrangements in clause 42 should apply only to better-off families, because children from poor backgrounds do worse on average—although some do very well—than children from better-off backgrounds. Even if he could make the case that he is seeking to make, which he cannot, it is not an argument against the measures, and that is even before we deal with the human rights and discrimination issues. Therefore, I urge the Committee to support the clause as it stands.

Dawn Primarolo: I shall start by referring to the provisions in the clause and then respond to the hon. Gentlemen’s contributions. Clause 42 makes provision for bringing the arrangements for female civil partners in line with those for married couples. Where a female civil partner gives birth to a child conceived as a result of donor insemination, she is the mother of the child and her civil partner will automatically be the other parent, unless she did not consent to the mother’s treatment. The terminology of the clause is different, as it seeks to bring civil partnerships within the sphere of the legislation, but otherwise the legal provisions are the same as for married couples.
I shall return to this point, but the hon. Member for Boston and Skegness would seek within a short period of time—nine months maximum—to conflate a range of relationships that may change who is the parent with legal responsibility. We have accepted provision for married couples and we are making the same provision for same-sex couples in line with the civil partnership legislation. There cannot be any points of principle on that, because civil partnership legislation has been passed by the House. It is not about whether we had a discussion on the Floor of the House on the need for a father, but a recognition that the House has accepted partnerships and civil partnerships in legislation.
The hon. Member for South-West Devon advances an argument that is not supported by the majority of the House, in discussions on not only the Bill but civil partnerships and other legal status, and the Finance Bill, which recognises civil partnerships as equivalent to marriage for tax responsibilities. Therefore, as he acknowledged, he holds a minority view. He put it powerfully, but I absolutely disagree with him on every point. He advances the argument that there is a diminution of the quality of parenting if the parents are not of a particular family type, namely heterosexual, married and constantly there. Regrettably, not just now in modern Britain, but throughout many centuries, family structures have not followed the model that the hon. Gentleman believes is best. Legislation reflects what the House has decided that the make-up of modern Britain is.

Gary Streeter: I may be wrong, but I do not believe that I mentioned the word “married” even once in my speech. If I did, it was not the main thrust of my argument, which was about the state facilitating a situation in which a child is denied the prospect of having a father, as a matter of state policy. That is what I am challenging.

Dawn Primarolo: The hon. Gentleman is absolutely wrong in his assertion that the clause, in recognising civil partnerships, seeks to do that. I regret to tell him that the presence of a father within a family structure does not necessarily mean that he is actively engaged in the upbringing of his children. The Government position is that, in recognition of the legislation, all parents have responsibilities to their children, and that the quality of parenting is crucial. The clause adds a second legal parent; it does not take away status or say that there is not another individual in the child’s genetic make-up. That is why the right for a child aged 18 to know who are the donors is crucial.
I do not wish to rehearse it. The hon. Gentleman has made his case twice. He bases his argument on a preferred model without evidence that quality of parenting is crucial. He and other Conservative Members have described families in crisis or experiencing breakdowns and sought to say that that applies to all.
The hon. Member for Rugby and Kenilworth commented in an intervention on what is recorded on the child’s birth certificate. I was taught, and I am sure that every Committee member would concur, that honesty is always the best policy. The best relationships between children and their parents are built around honesty. It is important that children should be told by their parents at an early age that they were donor conceived; that is recognised to be beneficial to the children. That is why the Government support and promote the Donor Conception Network’s “Telling and Talking” project. Hon. Gentlemen may continue to advance their case if they want, but a majority of the House substantially disagree with their view. Having passed legislation on the matter, it is necessary that we ensure that future legislation complies with the House’s views.
The hon. Member for South-West Devon quoted the White Paper, saying that it showed that the Government were doing two different things. I do not agree. It comes back to the point, which is made in the White Paper, that fathers—and, the provisions ensure, parents—take responsibility for their role through participation in their children’s upbringing, in this case by registering the birth with the mother. That is exactly where we should be.
The hon. Member for Boston and Skegness asked a couple of questions and gave examples. Is he seriously suggesting that between conception and birth, several legal partnerships will be entered into, dissolved and re-entered? The first point that must be made is that counselling is given before IVF treatment, during which it is crucial that the welfare of the child is considered. That includes parents with a stable relationship who are committed to the child’s upbringing. As I said in my opening remarks, the clause introduces the same measures that have operated for married couples so far, and I do not remember any complaints about them. To answer his scenarios, I hope that he is not suggesting that we should treat same-sex couples differently, given their legal status under civil partnership legislation.
The hon. Gentleman also asked what would happen if assisted conception took place within a civil partnership and then, within the short period after all the processes are gone through and before the baby is born, the civil partnership is dissolved and the mother marries. It will be presumed that the husband is the father, but that presumption is rebuttable—this is the same point as in our discussions on previous clauses—by DNA testing. Because clause 42 would apply, the original civil partner would be the other legal parent. This comes back to the fact that in deciding to become parents, the individuals need to recognise that they have a responsibility as parents that will endure, but which under certain circumstances could be rebutted.
If the civil partners have an assisted conception and then enter into a second civil partnership, that will not affect the original arrangement. As in the first example that the hon. Gentleman gave, the original civil partner will be the other legal parent by virtue of clause 42. This is about recognising the point at which the decisions are taken and I have covered the importance of that issue.
The hon. Gentleman also asked about what happens if the civil partner does not consent. In that case, they would not be the legal parent of the child because the consent would be presumed unless evidence was shown to the contrary. Of course, these are complex relationships in terms of law and reflecting on what is necessary to produce an outcome on who has the legal responsibility. While I acknowledge the strong feelings of the hon. Member for South-West Devon, with which I do not agree, I have given most of my remarks in this debate in relation to what the clause does, as opposed to the wider principle.

Mark Simmonds: I am grateful to the Minister for responding to the points that I made. I accept that the examples that I gave in relation to this clause and the previous clause are unlikely and complex. Nevertheless, it is the Committee’s job to scrutinise and to make sure that the law is robust enough to cater for all potential circumstances. I noticed from the flurry of papers that was being exchanged while I was asking my questions that this was perhaps something that had not been considered before, so I do not regret asking these particular questions. The answers have demonstrated that differences exist between how the law is structured for same-sex couples and for different-sex couples, and that while the new husband in the heterosexual couple will be the father of the child, the original civil partner will be the other partner on the birth certificate. It was quite right to extract that information from the Minister. I say to her that I was not trying to demonstrate any prejudice, or whatever word she might like to use, as regards the differences between heterosexual and same-sex couples. Indeed, if my hon. Friend the Member for South-West Devon chooses to vote against the clause, I shall not vote with him.

Question put and agreed to.

Clause 42 ordered to stand part of the Bill.

Clauses 43 and 44 ordered to stand part of the Bill.

Clause 45

Further provision relating to sections 42 and 43

Tom Clarke: I rise to speak to amendment No. 154, in clause 45, page 41, line 4, leave out subsection (1).
It is a great pleasure to speak under your chairmanship, Mr. Hood. I expressed most of my views under your predecessor, Mr. Gale, and therefore I shall be very brief.
Tonight, in common with other Members, I have had the opportunity to be at other important House of Commons events: meetings of the Administration Committee, the all-party group on learning disability and so on. I note that there are no cameras from the Daily Mail and the BBC showing a fairly well attended Committee. A photograph was published of the Chamber on the day on which I last spoke in Committee. It was taken during the debate on knives, and the media said that only 16 Members “bothered to turn up” to that debate. I hope that some day the media will recognise the marvellous work that you chair, Mr. Hood, and the fact that hon. Members make a contribution in such Committees.
I tabled amendment No. 154 to give the Committee the opportunity to have the kind of debate that we have just had. With the greatest respect to my hon. Friends, it might well be that the hon. Member for South-West Devon does not have much support in this Committee, but he has overwhelming support in my constituency. I think that it is perfectly fair that that view is expressed.
Clause 45(1) states:
“Where a woman is treated by virtue of section 42 or 43 as a parent of the child, no man is to be treated as the father of the child.”
I find that quite chilling. When I served on the Committee that considered the Bill that became the Children Act 1989, it was accepted that the rights of the child were paramount. In all honesty, I have not seen that as a theme in our debates throughout our consideration of the Bill. As for prejudice, that is an unfortunate word that does not apply to the views that were expressed in the Committee today.
I think that there is an obligation to the child. We were entitled to ask today what was in the best interest of the child. We discussed entirely and exclusively what many regarded as the rights or otherwise of adults, but not those of the child. The reason why I tabled the amendment was that I felt—and still do feel—that far more focus ought to be given to the rights of the child and their future after they are born. I do not agree with the majority of hon. Members on this matter, although I accept that a view was taken by the House. I also acknowledge that the Prime Minister accepted that there would be a free vote. In that spirit, I have expressed my view. It would have been less than courageous not to have said to the hon. Member for South-West Devon that he has support in parts of the House and elsewhere in the country. I have no desire to move the amendment.

Jimmy Hood: Order. Does the right hon. Gentleman not wish to move his amendment?

Tom Clarke: We have had a reasonable debate and it is probably wise not to do so.

Jimmy Hood: The amendment is not moved.

Clause 45 ordered to stand part of the Bill.
Further consideration adjourned.—[Steve McCabe.]

Adjourned accordingly at twenty-three minutes past Seven o’clock till Thursday 12 June at Nine o’clock.